The mechanics of this phenomenon stems from an academic tradition called “positivity theory,” which suggests that people are fond of the court when they learn more about it and its, for lack of better term, mythology as an institution governed by norms and precise legal principles. According to positivity theory, the rich black robes, the pageantry of the institution and its grandiose architectural home, and the legal language used by its Justices all buttress the perception that the Court is above the rough and tumble of everyday politics. This perception then limits the deeper consequences that “bad” or “undesirable” decisions have for public perceptions of the Court’s legitimacy – like the broadly unpopular gutting of Roe v. Wade might.

That story, however, struggles to square with the evidence of the Court’s open hostility to democratic values throughout American history. The decision in Dred Scott v. Sandford upheld slavery. Plessy v. Ferguson installed Jim Crow. Korematsu v. United States legitimized the internment of Japanese Americans during World War 2. Citizens United v. FEC drowned American elections in dark money. The Roberts Court neutered federal voting protections in Shelby County v. Holder. And, now, the Supreme Court is poised to overturn Roe v. Wade. Paul Campos of Lawyers, Guns, & Money puts it bluntly: “The Supreme Court has always been a radically anti-democratic essentially reactionary institution, and the fact that it very occasionally squeezes out good political results, invariably by constructing various fantasy narratives about an imaginary history of the United States, is not a defense of the institution, which is not defensible on even the most tenuous democratic principles.”

Will the public reaction be different this time? Proponents of positivity theory might predict that this decision will have muted effects on perceptions of legitimacy. Past research by political scientists James Gibson and Michael Nelson seems to suggest, in fact, that the leak of the potential majority opinion is the problem – not necessarily the decision itself. In their telling, the Court “…should worry less about angering the public with its policy decisions, and focus more on the public's satisfaction with its processes, procedures, and politics—and especially with its appearances and associations with legal symbols—if it is to avoid putting its popular legitimacy at risk.” In other words, the democratic crisis comes not from substantive rulings that gut democratic rights, but through the public’s impression that Justices are conniving, political actors who leak prospective rulings.

This argument notwithstanding, the public is not totally immune from evaluating institutional rot, and new research suggests citizens treat the Court like other partisan institutions – cheering when it suits them and jeering when it does not. Today, the Supreme Court threatens to strip rather than protect individual rights – a playbook that often portends serious democratic decline. Whatever decline in attendant evaluations of the Court results, it will not be the process that dooms it, but the merits of the decision rendered by an unelected body of justices – made possible by the controversial appointment of several Justices nominated by a president elected by a minority of Americans. The political conditions of the present are materially different than those that characterized the period where few questioned the Court's mythmaking. When coupled with a dramatically different information environment (and a new generation of journalists and pundits with less stock in Supreme Court mythos), the conditions are ripe to strip away the Court's unjustified reputation as a "democratic" and "restrained" institution.

Is that a problem?

Normatively, while rapidly declining legitimacy is generally viewed as a significant challenge for democracy, a drop in the Supreme Court's institutional legitimacy is neither evidence of nihilism – a belief that everything is meaningless and that it is pointless to hope for change – nor even of a democratic crisis, per se. Instead, with the appropriate caveats, any souring of public opinion toward the Supreme Court can be viewed as a healthy psychological development among disillusioned democratic citizens – something we plan to study in greater detail in the coming months via a four-wave set of nationally-representative surveys. The Supreme Court and Democracy (SCD) panel study was designed to explicitly test whether democratic attitudes and support for democracy are linked to how people think about the Supreme Court during a moment of extreme political upheaval. Although the traditional story told about the Court's well of goodwill involves the idea that democratic values underpin its legitimacy, we are less sure this makes sense given the detachments of the Republican Party to democratic values. In fact, those who are most supportive of democracy have the most at stake and, in turn, should be least likely to approve of it! After all, an overturn of Roe would mean returning the issue of abortion access to laboratories against democracy, which have been expertly designed to thwart majoritarian rule and preferences.

Moving forward, we suspect that the present crisis of legitimacy is not found in the potential loss of confidence in the Supreme Court, but in the unaccountability of institutions that are able to purse profoundly undemocratic ends. Indeed, widespread decline in perceptions of Court legitimacy and the death of its mythos seem wholly appropriate if the larger democratic project is to survive. The SCD panel study provides an important window into just how that process will unfold by collecting data about the Court, the rule of law, and Americans' democratic values. We hope you'll follow along.